Case: Litman v. Goldberg, Index No. 524343/2025 (NY Sup. Ct., Kings County) Prepared: 2026-03-16 Status: INTERNAL — ATTORNEY-CLIENT PRIVILEGE / ATTORNEY WORK PRODUCT Purpose: Assess settlement leverage in light of the complete evidence record, with specific attention to findings made 2026-03-16 that were not available at the December 5, 2025 hearing.
At the December 5 hearing (Judge Maslow), defense successfully argued that patent filings were firm-level acts, not personal acts by Goldberg. The judge expressed concern. That argument is now significantly weaker:
| Factor | Dec. 5, 2025 Status | March 16, 2026 Status |
|---|---|---|
| Goldberg personal acts | Argued; limited documentation | 14 signed POA forms confirmed via OCR, PDFs in evidence |
| A second named attorney's personal acts | Unknown | 16 PTOL-85 Part B forms — James Lafave (Reg. 71013) — zero exceptions |
| "Automatic/clerical" defense | Available to defense | Destroyed by PTOL-85B Box 2 language: "If no name is listed, no name will be printed" |
| Third-party government corroboration | None | USPTO Issue Notification (IR103) addressed outgoing to "Richard C. Litman / NGM" |
| Post-arbitration duration | Known generally | Confirmed: Dec 18, 2023 – Jun 5, 2024 (170 days exclusive / 171 days inclusive), spanning 3 institutional clients (corrected 2026-04-26 — prior cell said "169 days") |
| Second individual defendant available | No | Yes — Lafave; he alone caused misappropriation in App 18/379,906 |
Defense centered on the argument that the firm — not Goldberg personally — made patent filings. This argument required ignoring that:
Additionally, Lafave's personal registration number (71013) appears on every single PTOL-85 Part B in the evidence set. Both men signed federal government forms with their individual practitioner credentials. This is the exact opposite of a "firm-level" act.
The PTOL-85 Part B form contains this instruction (verbatim): "If no name is listed, no name will be printed."
Lafave typed "Richard C. Litman" in Box 2. He did it 16 times across 170 days exclusive / 171 days inclusive (12/18/2023 → 6/5/2024). He did it for patents assigned to 3 different institutional clients (KFU, KSU, KISR). He did it even on App 18/379,906 where he himself signed the companion POA — meaning no one else directed him to use Litman's name. There is no automatic process to blame. (corrected 2026-04-26 — prior text said "169 days.")
James N. Lafave (Reg. 71013) is a named NGM attorney (confirmed via nathlaw.com) with independent personal liability under Turane v. MGN, LLC and NY LLC Law § 609 for: - 16 post-arbitration personal acts (PTOL-85 Part B filings) - 1 application (18/379,906) where he is the sole responsible individual — he signed both the POA and the PTOL-85B
Plaintiff has not yet named Lafave as a defendant. Adding him is a credible and well-documented threat. Filing an amended complaint naming Lafave would: - Double the number of individually liable defendants - Increase defendant's total litigation and settlement cost - Force NGM to choose between defending Lafave jointly or creating conflicts within the firm
Section 51 provides: - Injunctive relief — cessation of use (partially moot for past patents; still applicable to website) - Compensatory damages — actual injury to plaintiff - Exemplary (punitive) damages — available when defendant acted "knowingly" (post-arbitration use clearly satisfies this) - Attorney's fees — discretionary under § 51
| Category | Basis | Rough Range |
|---|---|---|
| Lost business / client relationships | KFU, KSU, KISR, KNPC used Litman's name during transition — clients may have stayed with NGM believing Litman was still responsible attorney | Fact question; needs billing records |
| Unjust enrichment / disgorgement | NGM billed institutional clients for patent prosecution listing Litman as attorney of record. KFU alone was the world's largest university patent filer in 2024 (631 patents issued); 467 of those listed Litman | Revenue on 905 patents × NGM's prosecution fee per patent |
| Reputational harm | Litman's name on 905 patents in matters he did not supervise — if any of those patents are ever challenged for inequitable conduct or improper prosecution, his name is on them | Difficult to quantify; supports exemplary damages |
| Exemplary damages | Post-arbitration use (all 16 Lafave acts, all 14 Goldberg acts) is use with actual knowledge of the dispute = "knowing" under § 51 | Discretionary; can be substantial multiplier |
Patent prosecution fees for institutional KFU/KSU work typically run $3,000–$15,000 per patent (US prosecution only). At a conservative $5,000/patent average: - 905 patents × $5,000 = $4.525 million total prosecution revenue - If plaintiff argues full disgorgement on the 905 patents (from 6/15/2020 forward)
Post-arbitration subset only (approximately 300+ patents issued post-6/14/2023 based on KFU volume): - 300 × $5,000 = $1.5 million prosecution revenue on post-arbitration patents
Note: These are illustrations only. Actual billing records (sought in discovery) will establish the real number. KFU at 631 patents in 2024 alone with an institutional client relationship suggests revenue at the higher end.
Both Goldberg (Reg. 44126) and Lafave (Reg. 71013) are registered USPTO practitioners subject to OED discipline. Using another practitioner's name on federal government filings without authorization is potentially: - A violation of 37 C.F.R. § 11.804 (misconduct involving dishonesty, fraud, deceit, or misrepresentation) - A violation of 37 C.F.R. § 11.801 (unauthorized practice / misuse of credentials)
An OED referral or even a credible OED complaint threat is career-threatening. A practitioner suspended or disbarred from USPTO practice cannot prosecute patents. For attorneys whose practice is primarily patent prosecution, this is existential. Settlement is strongly preferable to any public finding of fact that they used another practitioner's name without authorization.
The evidence here is already in the public record (government forms downloadable by anyone). An OED complaint would require no additional discovery — just submission of the PTOL-85B PDFs showing Lafave's signature and Litman's name in Box 2, with the form's own instruction that the choice was deliberate.
Counsel should consider whether to reference OED exposure in settlement discussions or hold it as leverage.
KFU, KSU, KISR, and other institutional clients engaged NGM believing that Richard Litman (a known, senior patent attorney) was handling their prosecution. Litman's name appears on the face of their issued patents.
If KFU or KSU's general counsel learns that the attorney of record on their patents was no longer associated with the firm during prosecution — that the name was simply maintained on government filings for continuity — there is potential: - Malpractice exposure (if prosecution was improperly attributed) - Client relationship loss - Inquiry into whether NGM properly managed conflicts and representations
Settlement keeps this private. Litigation makes it a matter of public record in a NY Supreme Court case.
Adding Lafave costs plaintiff minimal additional effort — the evidence is already gathered (16 PTOL-85B PDFs, all downloaded). But it doubles the individual defendant count, forces NGM to provide separate representation if conflicts arise between Goldberg and Lafave (e.g., if one tries to deflect blame to the other at deposition), and increases overall litigation cost to the defense side.
Plaintiff can use the Lafave threat as a settlement lever: resolve now before an amended complaint adds Lafave, or face a wider litigation.
Plaintiff's damages case improves significantly in discovery. Defense's position does not. Discovery will produce: - NGM billing records for KFU, KSU, KISR matters — establishing exactly how much revenue was billed under Litman's name - Goldberg's partnership agreement / K-1 distributions — showing his personal financial benefit - Internal communications about Litman's departure, the CN-37833 account, and whether anyone internally flagged the continued use of his name - Lafave's deposition on Box 2 — "who directed you to write Litman's name?" (Either he implicates Goldberg, or he admits it was his independent choice)
| Weakness | Impact | Mitigation |
|---|---|---|
| Litman non-consent declaration not yet obtained | Element 3 (without consent) technically unproven; defense can claim implied license | Obtain immediately — this is the single highest priority before any settlement demand |
| No billing records yet | Damages are estimated, not proven | Discovery demand; include in settlement demand as precondition to resolution |
| Judge expressed skepticism Dec. 5, 2025 | Personal liability framing was not fully credited at prior hearing | New evidence (POA PDFs, PTOL-85B finding) directly addresses the judge's stated concern; resubmit in opposition to any SJ motion |
| §§ 50-51 "name" scope in commercial/professional context | Defense may argue that attorney-of-record listing is not "use of name for trade" under § 51 | Arrington v. New York Times and its progeny support broad reading; KFU/NGM commercial context is strong |
| Arbitration award scope | Need to confirm whether arbitration addressed post-departure name use or was limited to other claims | Counsel confirms with client and reviews award |
The evidence developed since December 5, 2025 transforms this case. At that hearing, plaintiff had a theory and an inference. As of today:
This is no longer a case that depends on inferential or circumstantial evidence. It is direct documentary evidence of personal acts by two NGM attorneys using Litman's professional identity on federal government forms after they knew his authority had been adjudicated. The defendants' best arguments — firm-level conduct, automaticity, inadvertence — are now contradicted by the documents themselves.
Settlement at a meaningful number is strongly in both parties' interest before this record is fully developed in public litigation.
Rule (per Richard Litman, 04/16/2026): On any matter for which defendants have failed to produce the billing records — whether through the eight-month concealment of the July 2025 Payment Allocation Report (see Finding #50) or through the still-missing Aug/Sep 2025 reports — plaintiff's damages are to be calculated using the following baseline:
C2051472_ND0000271385; Martha Long's quoted pricing; engagement-letter schedules).Rationale: The plaintiff is not to be penalized for the defendants' service deficiencies or discovery suppression.
The damages illustration above uses a conservative $5,000/patent average ($4.525M on 905 patents). Uncle's updated fee baseline replaces that with a $15K–$20K range grounded in NGM's own quoted pricing to institutional clients:
| Scenario | Fee Base | Plaintiff 20% Share |
|---|---|---|
| 905 patents × $15,000 | $13,575,000 | $2,715,000 |
| 905 patents × $20,000 | $18,100,000 | $3,620,000 |
| Post-arbitration 640 × $15,000 | $9,600,000 | $1,920,000 |
| Post-arbitration 640 × $20,000 | $12,800,000 | $2,560,000 |
The fee baseline operates in addition to the compensatory and punitive analysis above; it is not a substitute for the disgorgement and royalty theories. The $5,000/patent conservative illustration is hereby superseded by the $15K–$20K baseline as the working range.